Age discrimination is not in fashion: AG Bobek’s Opinion in Abercrombie & Fitch v Bordonaro

Dr Jule Mulder, University of Bristol

The Facts

The case is concerned with the conformity of Italian law on on-call contracts with the EU principle of non-discrimination on grounds of age. Antonino Bordonaro was employed under an on-call contract (similar to a zero-hour contract) by Abercrombie & Fitch Italia Srl on a permanent basis. Upon his 25th birthday Mr Bordonaro was dismissed due to the fact that he no longer complied with the conditions for the intermittent contract, as laid down by Article 34(2) Legislative Decree No 276/2003 applicable at the time he was hired. The (now repealed) Italian law in question provided special arrangements regarding access to and dismissal from on-call contracts for some workers. While on-call contracts under Italian law are usually subject to objective reasons and certain conditions, the provision allowed for such contract to be offered ‘in any event’ to workers under the age of 25 or above the age of 45. At the time of Mr Bordonaro’s dismissal, Article 34(2) had been modified. The older age bracket was lifted from 45 to 55 years of age. Moreover it was specified that an on-call contract can ‘in any event’ be concluded ‘with a person under 24 years of age, on the understanding […] that the contractual service must be performed before the age of 25 is reached’. The modified provision thus allowed automatic termination of permanent on-call contracts with younger workers once they reached the age of 25, in addition to allowing more flexibility regarding younger and older workers’ exposure to on-call contracts. Unsurprisingly, the Supreme Court of Cassation (Corte Suprema di Cassazione) identified the direct and clear reference to age in Article 34 as potentially problematic and asked the Court of Justice of the European Union (CJEU) to rule on its compatibility with the principle of non-discrimination on grounds of age in Directive 2000/78 and Article 21 of the EU Charter.

The Legal Analysis

Advocate General (AG) Bobek delivered his Opinion on 23 March 2017. In his preliminary observations, he raises interesting questions regarding first, the relationship between Directive 2000/78 and Article 21 EU Charter, and second, in relation to the Charter’s function as an interpretive tool within the context of private law. The question whether the national legislation, the contract and the dismissal of Mr Bordonaro constitute age discrimination is however only discussed with reference to Directive 2000/78. This case comment will focus on the latter, namely the potential direct age discrimination and its justification.

Under Article 2(2)(a) Directive 2000/78 direct age discrimination occurs where one person is treated less favourably than another is, has been or would be treated in a comparable situation because of their age. Regarding the comparability of situations, AG Bobek emphasises that comparable does not mean identical. It rather requires an examination of whether ‘in relation to a given quality (that is, tertium comparationis, which may be a value, aim, action, situation, and so on), the elements of comparison (such as persons, undertakings, products) demonstrate more similarities or more differences’ (para. 40). Such comparison needs to be carried out considering the broader context and in the light of the subject matter and purpose of the act. As Directive 2000/78 focuses on employment and occupation, he then assesses whether workers in different age groups are in a comparable situation in terms of access to employment and dismissal. In particular, he emphasises that ‘the comparability of such different groups of persons would only be precluded if there were an element, such as a personal feature or a factual or legal circumstance, which makes the situations so different that the comparison becomes illogical or unreasonable’ (para. 45). He also rejects that structural and high youth unemployment means that younger workers are in a different situation because their comparability is only assessed considering a ‘number of factors that are relevant for the given quality’ (para. 47). Since all age groups are competent to do the job and apply for the same positions, there is no reason why they should not be offered the same working conditions.

To assess the (un)favourability of the treatment, AG Bobek then refers to the need to conduct a global assessment ‘balancing different elements of the contractual relationship, conditions and considerations’ (para. 64) including the impact of the contract in terms of pay and annual leave as well as access to the employment market. With reference to Mangold (C-144/04, EU:C:2005:709) and Georgiev (C‑250/09, EU:C:2010:699), he considers that the case law indicates that the ‘less favourable character is ascertained through a global assessment of the conditions emanating from the contractual regimes applicable to specific age categories, taking as a point of reference the ordinary employment relations’ (para 66). In these cases the CJEU identified a less favourable treatment because less stable (e.g. fixed-term) contractual relationships with older workers were authorised with no restrictions.

AG Bobek then points at a number of issues that will have to be considered. First, the on-call contracts allow maximum flexibility for the employer while the worker does not have an agreed working time or guaranteed income. Younger and older workers are exposed to this flexibility without the presence of objective reasons justifying the contractual arrangement as required for workers in the intermediate age group. Secondly, while the availability of on-call contracts may offer broader access to the job market, the existence of such contracts without imposing any additional requirements may also make it more difficult for these workers to find regular employment. Finally, the legislative history – the increased upper age limit from 45 to 55 years – and the general character of the provision as a derogation of the general rule indicate that access to these contracts is not always seen as favourable. All of these factors are to be taken into account when the national court makes its global assessment. The assessment should thus neither focus on specific rules alone nor should some negative or positive elements be considered in isolation.

Finally, AG Bobek assesses any possible justification under Article 6(1) Directive 2000/78. The primary aims of Article 34(2) identified by the Italian Government were (1) the flexibilization of the labour market to increase employment, (2) helping young people to access the labour market, and (3) ensuring that young people have opportunities to gain work experience, albeit not in stable employment. All of these aims fall within the remit of Article 6(1)(a) on employment policies, labour market and vocational training. AG Bobek then continues to assess the possible appropriateness and necessity of the measures considering each of the aims. Throughout the analysis, he particularly raises questions regarding the consistency of the measure. For example, the provision only increases flexibility for old and young workers and not for all workers, the provision on automatic termination may cancel out the advantage of labour market access facilitated by the creation of on-call contracts, and the personal scope is not limited to those young workers who require additional experience, education or apprenticeship. The need to consider less intrusive alternative measures is also highlighted.

In conclusion, AG Bobek suggests that the Italian law is only compatible with Article 2(2)(a) and 6(1) Directive 2000/78 if the national court determines that it can be justified under and pursues a legitimate aim linked to employment and labour market policy, and achieves that aim by means which are both appropriate and necessary. Continue reading

The week that was

In between the celebrations for 60th Anniversary of the Treaty of Rome and April Fool’s day, Day 1 of Britain’s exit from the EU began. On March 29th Sir Tim Barrow was despatched with a 6-page letter from Downing Street , which was ceremoniously handed over in front of the worlds cameras as he shook hands with European Council President Donald Tusk. The picture inevitably made front page news but in contrast to the media, markets failed to react either positively or negatively making Day 1 strangely anti-climactic – in effect more of a whimper rather than a bang. Nonetheless, the countdown has begun.

Day 2 brought a swift EU response in the form of Brexit Negotiating Guidelines. Despite expressing the deep regret that Brexit will now happen by March 29th  2019, the EU repeated its resolve to act as one. It set out core principles which also made clear that Britain’s desire for a UK-EU relationship of bits and pieces was delusional. Two phases for negotiation are set out: Phase 1 will focus on ‘disentanglement’, including consideration of the so-called ‘Divorce Bill’; Phase 2 will only begin when according to the European Council ‘sufficient progress’ has been made on Phase 1. Phase 2 of negotiations will include discussions only on the ‘overall understanding on the framework’ for the future relationship.  In another blow to Government plans, the Guidelines state that agreement on a future relationship can only be concluded when the UK becomes a ‘third country’ – work towards a free trade agreement can only begin once the UK is no longer a Member State of the EU. An LSE-Briefing Paper by Damian  Chalmers gives a clear overview of the challenges facing the Government negotiators.

Transitional arrangements can be considered, but it is unclear in which phase. What is clear is that during any transitional phase prolonging the EU acquis all Union regulatory, budgetary, supervisory and enforcement instruments and structures will continue to apply. However, transitional arrangements cannot provide a shelter for trade talks – as explained above, if this means that the UK remains a Member State, movement towards a free trade agreement with EU will be stalled. A transition period may therefore prove a hurdle to the conclusion of a free trade agreement or any future partnership in areas such as security and defence, terrorism, international crime. Transition is not the only hurdle – the EU has linked the application of any agreement between the UK and the EU in Gibraltar to a prior agreement between the UK and Spain. It is clear what lies behind this: 96% of residents on the Rock voted to remain in the EU. Nicola Sturgeon must be green with envy – the SNP would no doubt also welcome such protection.

The EU is also clear that the future partnership must include enforcement and dispute settlement mechanisms that do not affect the Unions autonomy – there can be no doubt since Opinion 2/13 on EU accession to the ECHR how jealously the CJEU will also guard its own powers. Thus it is hard to see how the UK can square this with its statement in the White Paper, published on Day 3, that the jurisdiction of the CJEU in the UK will end when we leave the EU. Unless, of course, it plans to leave the EU without any agreement.

Day 3 saw the publication a White Paper on Legislating for the UK’s Withdrawal from the EU. The centrepiece of this is a ‘Great Repeal Bill’, setting out the government’s vision of legislating for withdrawal from the EU. The plan for the Great Repeal Bill is to provide for ‘minor changes’ – it will repeal the ECA 1972 and incorporate wholesale the EU acquis communitaire (the Treaties but not the Charter, EU Regulations and Directives including implementing and delegated Regulations and Directives, and all CJEU case law) into UK law, convert EU Regulations into domestic law (these will be known as EU-derived law) and finally create limited discretionary powers for creation of secondary legislation. This secondary legislation will enable necessary ‘corrections’ to laws that would not function properly outside of the EU. In order to have the power to make these corrections, the Bill proposes the introduction of a so-called ‘Henry VIII clause,’ although this may cause significant problems according to Lord Neuberger.

It is questionable whether all this amounts to a ‘minor change’. It seems that the ‘Great Repeal Bill’ will create more in UK law than it repeals. By March 2019, and for an undefined period of time there will be two sets of laws: UK law and ‘EU-derived law’ both of which will remain relevant until repealed. Repeal, conversion, and correction to fill gaps in EU derived laws will be an ongoing process. While the use of Henry VIII powers is defended as necessary to provide legal certainty, the Bill envisages that there will be flux and constant change. Thus the law may change more than once during the process as negotiations continue.

The CJEU is specifically mentioned: while according to the Bill the jurisdiction of the CJEU in the UK will end, its case law will live on in EU-derived law: the White paper states that

‘as long as EU-derived law remains on the UK statute book, it is essential that there is a common understanding of what that law means…To maximise certainty, therefore, the Bill will provide that any question as to the meaning of EU-derived law will be determined in the UK courts be reference to the CJEU’s case law as it exists on the day we leave the EU…the Bill will provide that historic CJEU case law be given the same binding, or precedent, status in our courts as decision of our own Supreme Court’ (Paras 2.14 & 2.16)

EU law decided until March 29 2019 will therefore continue to influence law in the UK. Continue reading

The week that was

The week that saw the 10th anniversary of the European Research Council, began with the renewed demand by the First Minister of Scotland, Nicola Sturgeon, that Scotland have a chance to vote on whether it leaves the UK before the UK leaves the EU. This would be at some point between Autumn 2018 and Spring 2019. Her demand was immediately rebuffed by Teresa May, who condemned the move as the wrong policy at the wrong time, and committed herself to holding together this ‘precious, precious Union.’

As Stormont rose, the Lords retreated – having seen their two amendments on EU workers and a meaningful vote rejected by an increased majority, they allowed the 2 paragraph Brexit Bill to pass into law un-amended. Teresa May now has the power to begin Brexit talks and many expected Article 50 to be triggered by Tuesday but this did not happen, perhaps due to the storm brewing in Stormont, or the worry caused by Wilders in the Netherlands. The latter was resolved when Dutch voters rejected his racist and xenophobic vision for their country; it remains to be seen if and how Scottish voters will respond to the SNP.

The week also brought a visual manifestation of the chilly relations between the EU and the USA. Due to bad weather on Tuesday, the meeting between Merkel and Trump was postponed to Friday. Merkel may have been present as the German Chancellor but is widely seen as the leader of the free world and the voice of the EU. The body language at their press conference said it all, but in case of any doubt, there was then the so-called ‘Merkel Moment’.

John Major re-launched his condemnation of Leave campaigners saying “It was dishonest and wrong to promise the British people an easy, favourable deal with the EU, wrong to promise swift new trade deals, and wrong to state that the Irish peace process would not be unsettled by Brexit.” He dismissed claims that Britain could thrive under WTO rules, warning that 90% of UK exports to the EU would become more expensive, with tariffs that would add about £6bn to their costs.

Officials from the Department for International Trade may agree with him, which is why a Brexit Plan B is being discretely drawn up. They are investigating whether the UK can invoke the rarely–used Article 24 of the WTO Treaty. This would allow the U.K. and Brussels a “reasonable length of time” after Brexit to agree a transitional free-trade deal before WTO law forces both sides to impose the same tariffs on each other as they do on everybody else. Such an interim deal would avoid a ‘hard Brexit’ in March 2019 by keeping tariffs at zero when the UK leaves the Single Market.

Major also condemned the ‘fake facts and bogus promises’ spread by the Brexiters. Indeed far from the promised infusion of an extra 350 million per week,  the NHS is becoming de-staffed and de-skilled: nurses are leaving and not being replaced. Many of the 55,000 doctors and nurses in the NHS from the EU have felt unwelcome after the EU referendum and are now leaving. Simultaneously, new registrations of EU nationals as nurses in England have dropped by 92% since June 2016.

Given the departure of health-care experts, it is some comfort that the EU’s Rapid Alert System for dangerous products seems to be functioning well. According to the report for 2016, national authorities removed more dangerous products from stores and in response to increased e-commerce, the Commission has increased cooperation with Amazon, Ebay and Alibaba to tackle potentially dangerous products, such as toys, sold online. The Commission also continues to plan for the 60th celebrations of the EU on March 25th where the White Paper, presented by the European Commission setting out the vision of the 27 for the future of Europe after Brexit, will be debated. Continue reading

Achbita and Bougnaoui: raising more questions than answers

Case Comment: Case C157/15 Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV and C-188/15 Asma Bougnaoui Association de défense des droits de l’homme (ADDH) v Micropole SA

Samira Achbita and Asma Bougnaoui were both fired for wearing an Islamic headscarf in the workplace. In its Grand Chamber ruling of March 14th the Court of Justice of the European Union (CJEU) ruled that internal company rules banning the wearing of visible religious, political or philosophical symbols do not constitute direct discrimination on the grounds of religion or belief. It also developed some criteria according to which indirect discrimination can be legitimate and objective.

The case Achbita has already attracted critical attention (see HERE, HERE and HERE). Indeed, it is of great significance. Advocate General Kokott sets out the core question in her Opinion:

“Is a private employer permitted to prohibit a female employee of Muslim faith from wearing a headscarf in the workplace? And is that employer permitted to dismiss her if she refuses to remove the headscarf at work? These are, in essence, the questions which the Court must answer, for the first time in the present case, from the point of view of EU law, and, more specifically, in the light of the prohibition on discrimination based on religion or belief.”(para 1)

Developments with regard to the wearing of religious symbols and clothing are being closely watched across Europe and remain subject to ongoing discussions and political debate. The key question is whether and how this ruling of the CJEU provides a judicial space for employers to ban the wearing of religious symbols in the workplace.

The cases concerned Belgian and French women employees who were fired for wearing an Islamic headscarf. In the case of Achbita the preliminary question referred asked how Article 2(2)(a) 1 and 2 of Employment Framework Directive 2000/78 on equal treatment in employment and occupation must be interpreted. The core question was whether the prohibition on wearing an Islamic headscarf, set out in the general internal rules of a private company, is direct discrimination.

In its assessment, the CJEU found that the internal rules at issue banned all visible religious, political or philosophical symbols and that they applied in the same way to all employers so as to secure a neutral company image. The internal rules were applied without distinction, explicitly prohibiting the wearing of any visible sign of political or philosophical beliefs not just visible signs of religious beliefs. Therefore, the court concluded that the ban at issue could not be regarded as direct discrimination in the sense of Directive 2000/78.

The CJEU however recognised the possibility that such an internal rule could lead to indirect discrimination. This would be the case if the rules were capable of putting individuals of certain religions or beliefs at a particular disadvantage in comparison with other employees. Nonetheless, it held an indirect difference of treatment may be objectively justified by a legitimate aim, provided that the measure at issue is appropriate and necessary for achieving that aim.

In its ruling the CJEU thus concludes that the aim of an employer to present a neutral image towards its clients is legitimate, as long as these rules refer only to employees in direct contact with clients. The CJEU concludes that the national court is to determine if and to what extent the company rules comply with these requirements in practice.

Comment

This ruling is interesting from many points of view.

First of all, the considerable weight given to a company’s desire to promote a neutral appearance seems somewhat curious. It appears to contradict the ECtHR judgment in the case of Eweida and Others v. the United Kingdom where the Strasbourg Court ruled that there had been a violation of the right to freedom of religion or belief when Ms Eweida was not permitted to wear a crucifix at work. The ECtHR in Eweida considered that on one side was Ms Eweida’s desire to manifest her religious belief and on the other was the employer’s wish to project a certain corporate image, and that a fair balance had not been struck. Although the human rights court recognized that the employer’s wish to project a certain corporate image could be regarded as a legitimate aim, it found that the national court accorded it too much weight.

It could be argued that in contrast to Eweida, the ruling of CJEU provides more space for employers to ban the wearing of religious symbols in the workspace without violating the fundamental right to freedom of religion or belief. The ruling could be understood as confirming that the mere wish of a company to present itself in a neutral way is an objective justification for a different treatment of employees .

Second, it is remarkable that the CJEU extensively studies whether the objective is legitimate and the requirement is proportionate but at the same time fails to examine the proper balance between the desire of the employee to manifest her religious belief and the employer’s wish of a neutral workplace environment. On this issue Advocate General Kokott delivered the following opinion in para 127

it is for the referring court to strike a fair balance between the conflicting interests, taking into account all the relevant circumstances of the case, in particular the size and conspicuousness of the religious symbol, the nature of the employee’s activity and the context in which she must perform her activity, as well as the national identity of Belgium“.

The question is whether the omission of the CJEU to examine the said fair balance provides enough guidance to enable national judges to determine whether a company ban on wearing visible religious, political or philosophical symbols, can be regarded as indirect discrimination. Or does it simply push this hot potato onto the plate of the national judges?

Third, it seems curious that in its assessment on whether or not the company’s internal rules can be considered a legitimate aim, the court primarily (maybe even solely?) focuses on the fundamental right of freedom to conduct a business (Article 16 CFR). Why, for example, idoes it not mention the right to work in Article 31(1): Every worker has the right to working conditions which respect his or her … dignity?. It seems that the reasoning of the Grand Chamber, and the way in which it weighs the various relevant elements, remains implicit at best – but perhaps is simply incomplete. This is problematic in such an important case.

In Bougnaoui, the core of the preliminary question was whether Article 4 (2) of Directive 2000/78 must be interpreted as meaning that the preference of a customer to receive services from a company employee who does not wear an Islamic headscarf can be considered a genuine and determining occupational requirement.

The ruling of the CJEU on this question is clear. It concluded that in the absence of any company rule, the mere desire of an employer to take into account the wishes of a customer to ban religious symbols is direct discrimination. Such a ban cannot be regarded as a genuine and determining occupational requirement within the meaning of the Framework Directive.

Various NGO’s have already claimed that the ruling of the CJEU legitimizes discrimination, in particular towards Muslim women. As for now it will depend on the national courts and law-makers to set out the conditions under which an internal company rule can ban religious clothing from the workplace.

Monique Steijns

Monique works within the Dutch Ministry of the Interior as an adviser on constitutional law and human rights. Monique studied law at the University of Amsterdam. She is part of the Netherlands Committee of Jurists for Human Rights and chairperson of the working group Constitutional and Administrative law.

Monique contributes in a personal capacity; the opinions expressed cannot in any way be attributed to the Dutch government.

The week that was

The biggest news of the week was the Budget: the biggest news about the budget should have been that Brexit was not mentioned once. Headlines were dominated by the increase of high earning self-employed persons, overlooking another potentially important change lurking in the red box – the introduction of UK VAT on roaming telecoms services outside the EU – making it 20% more expensive to use a UK mobile in non-EU countries, or those that the UK seeks to do business with after Brexit. In other financial news, in Cornwall, where the majority voted to leave the EU and also relinquish £60m of annual funding from the EU, the Government has agreed to provide £18m to prop up the county’s weak economy.

Parliament this week warned of the consequences that might arise if the UK were unable to negotiate a Withdrawal Agreement  – the House of Common’s Foreign Affairs Committee advised the government to start preparing for the “real” possibility that it will leave the European Union without a deal. Worrying words also from Mars for chocolate lovers – a top Mars executive says that if the UK leaves the EU without a trade deal it will endanger jobs and raise prices. If the UK falls back onto World Trade Organisation rules, prices could be subject to trade tariffs of 30% in confectionery, 20% for animal products, over 15% for cereals and more than 10% for fish and fruit.

New personnel were sent to Brussels: the UK Permanent Representation to the European Union announced two new senior appointments. Katrina Williams has been appointed to the post of UK Deputy Permanent Representative and Simon Case will be the new Director General for the UK-EU partnership – he will work with Sir Tim Barrow, the UK Permanent Representative to lead the work on Brexit. Let’s hope he gets on well with Donald Tusk who, much to the anger of his compatriots, has been re-confirmed as President of the European Council for a further 2.5 years. If the two year timetable is held, he will therefore lead the EU-27 Heads of State and Government through Brexit.

Finally, daring to dream into the future, Commission President Juncker, shared his hope that the UK will one day rejoin the EU. Back to the present and he has been contacted by European Ombudswoman Emily O’Reilly, who has raised concerns about transparency and public access to documents. She has received complaints about the response to requests for public access to documents connected to the UK referendum and the negotiations.  Juncker has been asked to provide details of how ‘the Commission intends dealing with the transparency of the upcoming negotiations, bearing in mind citizens’ rights.’

This week begins with Dutch voters heading to the voting booths in a national election that may see this liberal country lurch to the right; the Prime Ministers prepares to trigger Article 50; academics at Oxford, fearing a huge loss of staff and skills, urge the Prime Minister to protect the residency rights of EU workers in the UK; and Angela Merkel prepares to meet Donald Trump, with aims apparently to sway rather that persuade him on climate change. One wonders whether she may also charm Steve Bannon, Trump’s right-hand, right-wing man in the West Wing, whose anti-EU worldview is keep many in Brussels awake at night.

From the CJEU:

C-342/15 Piringer : Freedom to provide services: Member States may reserve to notaries the power to authenticate signatures appended to the documents necessary for the creation or transfer of rights to real property

C-398/15 Manni : Approximation of laws-  there is no right to be forgotten in respect of personal data in the companies register

C-615/15 P Samsung SDI and Others v Commission Competition – The Court upholds the fines imposed on Samsung SDI and Samsung SDI (Malaysia) for their participation in the cartel on the market for tubes for television sets and for computer monitors

 C-484/15,C-551/15 Zulfikarpašić : Area of Freedom, Security and Justice – Notaries in Croatia, acting in enforcement proceedings on the basis of an ‘authentic document’, cannot be deemed to be ‘courts’ either within the meaning of the Regulation on the European Enforcement Order or for the purposes of the application of the Regulation on the recognition and enforcement of judgments in civil and commercial matters

News round-up

This week, John Major’s reality check on Brexit annoyed the Tories, but not as much as the House of Lords. In the biggest upset of her plans to date, Teresa May has had to face the defeat of her Bill in the House of Lords, where peers overwhelmingly supported a Labour amendment to secure the rights of the 3.6 million EU citizens living in the UK. Losing a vote during the committee stage in the House of Lords means the Brexit bill will enter a so-called ping pong between the Houses of Commons and Lords, potentially delaying its passage into law. Applications for permanent residency have risen, as has the cost and difficulty in gaining this. Home Secretary Amber Rudd confirms that the current right to travel and work in different EU countries will not remain when Britain leaves the EU and March 15 has been mentioned as a cut-off date for full rights of residence. Rudd this week also authorized the use of stronger tasers by the police.

The confident words emanating from Downing Street that concessions would not be made may be tempered by the news that peers also plan to reject May’s threat to walk away if EU leaders offer only a ‘bad deal”, leaving Britain out of the EU and dependent for its international trade relations on World Trade Organisation (WTO) rules. Gina Miller has also warned of further legal proceedings if Parliament is not guaranteed a meaningful vote on leaving the EU. The question remains as to whether rejecting a deal is the prerogative of the UK – Art 50 (3) TEU does not preclude the EU from walking away from the table. It is indeed questionable whether there is a choice – Art 50 says nothing about whether either party can continue negotiations after two years in the absence of formal unanimous agreement for an extension of talks.

Another week, another Le Pen scandal: MEPs voted to remove parliamentary immunity from Marine Le Pen, leaving her open to prosecution. The EP has also thrown the gauntlet down to the USA – in response to US travel restrictions on five EU member states, MEPs encouraged the Commission to impose visa restrictions on travellers from the USA visiting the EU. Continue reading

Brexit Round-Up

On Friday 17th February, Tony Blair, launched his campaign for Bremain, declaring it his “mission” to persuade Britons to “rise up” and change their minds on Brexit and find  “a way out from the present rush over the cliff’s edge”. Speaking in the City of London, the former prime minister claimed that people voted in the referendum “without knowledge of the true terms of Brexit”. Debate continues to rage over the true cost of Brexit, as a result of Camerons commitment to fund the whole current EU spending cycle from 2014 to 2020. The time lag between commitment and expenditure – the “Reste à Liquider” (RAL) – may see Britain making payments to Brussels until at least 2023. The true costs of the referendum are now coming to light, as the Electoral Commission declares it the most expensive referendum in British political history.

This week also saw the start of the journey of the Brexit Bill through the House of Lords under the steely, somewhat sneering gaze of the Prime Minister and a warning that Britain will be plunged into its biggest turmoil in over a century if peers attempt to thwart Brexit’.  The attempt to intimidate was lost on Liberal Democrat Baroness Kramer who called for voters to have “the final word” on the Brexit deal in a referendum.

Stephen Sedley commented on the curious language used in the Brexit Bill, calling the ‘petulant and ungrammatical wording, alongside the use of an acronym rather than the name of the European Union’ a ‘curiosity’ that raised the question of whether the Bill ‘was copied from the back of a ministerial envelope.’ He also agrees with those who think that the CJEU may yet have to determine whether Article 50 TFEU once triggered can be revoked:

‘…if, after two years of negotiation, no acceptable deal has been reached with the other member states, either the prime minister’s notice under Article 50 will expire and our membership of the EU will lapse with no deal in place, or the notice will have to be extended or withdrawn. Who has authority to decide whether this can be done? The Court of Justice of the European Union, that’s who.’

Businesses begin to make Brexit plans – Barclays Bank announced an expansion of operations in Ireland and Germany, although apparently the bulk of operations will stay in London after Brexit even if the UK loses access to the single market. Farmers also delivered a warning over the consequence of losing EU seasonal workers: according to figures released this week, more than 100,000 EU citizens left Britain in the three months after the EU referendum. New worker registrations from Poland, Hungary and Slovakia are down from 16% – 20% prompting fears of a recruitment crisis.

Meanwhile, fraud investigations spread from the father to the daughter: this week French police raided the FN Headquarters of Marine Le Pen as part of an official investigation into “fake” jobs involving the misuse of European Union funds to pay for a bodyguard and an assistant in Paris. OLAF has demanded that she repay €340,000 and in the face of her refusal, is currently deducting this from her MEP’s salary.

Finally, as Labour clung onto Stoke and the Conservatives took Copeland, questions have been raised concerning the future of UKIP – having lost ‘Brexit capital’ is UKIP now a spent force? In Stoke, UKIP finished more than 12 points behind Labour. Can the end of the insurgency party in the UK fortell the end of the insurgent in the White House? Continue reading

Brexit Round-Up

From the News:

A week on from the rendition of Ode to Joy by SNP Parliamentarians in Westminster in response to the Brexit White Paper, the Speaker of the House, Mr John Bercow, finds himself in hot water for exercising his own freedom of speech.

Calls for his resignation have drowned out the perhaps more significant news that as far as the EU is concerned, the UK will not be able to negotiate its exit and future relationship with the EU concurrently and while the latter proceed, the UK will remain under the jurisdiction of the CJEU.

The Supreme Court finally responds to the media attacks on the judiciary during the Miller case: Lord Neuberger said in an interview on BBC Radio 4 that politicians were too slow to defend judges after Brexit case, especially as the vitriol aimed at judges ‘undermined rule of law.’

The division of the Supreme Court in Miller was perhaps not as surprising as its unanimity on the devolution questions. Eutopialaw’s own Aidan O’Neill considers the potentially disastrous consequences of this aspect of the decision for the UK in an article here.

While Article 50 has not yet been triggered, a report from the CIPD and The Adecco Group finds that labour and skills shortages are already appearing in sectors of the UK economy that employ a high number of EU nationals.

Trade integration continues under the shadow of Brexit: a day after MEPs approve CETA (Comprehensive Economic and Trade Agreement), Justine Trudeau tells the European Parliament that the whole world benefits from a strong EU.

Meanwhile back in the UK all eyes are focused on February 23, the day of by-elections in Stoke-on-Trent and Copeland – where the electorate voted by majorities of 70 % and 62% respectively to leave the EU.

All eyes will then turn to France, where Marine Le Pen has been given high odds of winning the French presidential election. Her father however has lost his case in Luxembourg against the European Parliament, which has taken action to recover monies paid to him and his parliamentary assistants.

Finally, BBC Radio 4 launches its series ‘Brexit – A Guide for the Perplexed’ on February 17th – will the Government tune in?

Recent Case Law from the CJEU:

Opinion of the Advocate General C-74/16 Congregación de Escuelas Pías Provincia Betania

State aid: In the view of Advocate General Kokott, tax exemptions for Church-run schools do not, as a rule, breach the prohibition on State aid

Judgment of the Court of Justice C-219/15 Schmitt

Approximation of laws: The Court of Justice delivers its judgment in the case involving breast implants made of inferior quality industrial silicone

Judgment of the Court of Justice C-560/14 M v Minster for Justice and Equality

Claims for Subsidiary Protectionan applicant for subsidiary protection does not have the right to an interview but an interview must be arranged where specific circumstances render it necessary in order to examine the application with full knowledge of the facts.

Opinión C-3/15 Avis au titre de l’article 218, paragraphe 11, TFUE

Law governing the institutions: the EU, acting on its own, may conclude the Marrakesh Treaty on access to published works for persons who are visually impaired

Judgment of the Court of Justice C-562/15 Carrefour Hypermarchés SAS v ITM Alimentaire International SASU

Comparative advertising based on prices as between shops having different formats and sizes is unlawful in certain circumstances

Opinion of the Advocate General C-638/16 X and X

DFON: According to Advocate General Mengozzi, Members States must issue a visa on humanitarian grounds where substantial grounds have been shown for believing that a refusal would place persons seeking international protection at risk of torture or inhuman or degrading treatment

Judgment of the General Court T-646/13 Minority SafePack – one million signatures for diversity in Europe v Commission

Citizenship of the Union: The General Court annuls the Commission decision refusing registration of the proposed European citizens’ initiative entitled ‘Minority SafePack – one million signatures for diversity in Europe’

Law and Politics in the Supreme Court

Phil Syrpis, University of Bristol Law Schoolsyrpis

By a majority of 8 to 3, the Supreme Court held that in light of the terms and effect of the European Communities Act 1972, ‘the prerogative could not be invoked by ministers to justify giving Notice under Article 50… Ministers require the authority of primary legislation before they can take that course’ (para. 101). Within hours, the European Union (Notification of Withdrawal) Bill, authorising the Prime Minister to trigger Article 50, was published. It passed through the House of Commons unscathed yesterday. A White Paper, setting out the Government’s plan for Brexit, such as it is, has also been published.

The purpose of this post is very specific. My aim is not to analyse the judgment, the Bill or the White Paper. That has been done elsewhere. Instead, my aim is to begin to explore the relationship between law and politics, and between Parliament, the executive and the judiciary, taking as a starting point the judgments in the Supreme Court. The judges are, at times, careful not to trespass into the political realm. Nevertheless, their findings are informed and influenced, in a number of ways, by the political context. There are, moreover, important differences between the approaches adopted by the majority and the minority, including differences relating to the judges’ understanding of the legal process of Brexit. It is hoped that inconsistencies between and within the judgments will provoke further academic consideration of the extent to which Courts should intrude into, or take cognisance of, the political realm; and of the extent to which constitutional safeguards are matters of substance or form. But, at this febrile political time, the clearest conclusion is that by failing to answer key questions of law, the Court has done a disservice to Parliament, thereby contributing, not towards the provision of a clear framework within which politicians are able to address the realities of Brexit, but to the pervasive sense of confusion.

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Miller Judgment breaches UKSC duties under EU law in disservice of UK Parliament

ASG smallDr Albert Sanchez-Graells

The UK Supreme Court (UKSC) has today handed down its Judgment. It has done so in a way that both infringes its duties under EU law and does a disservice to the UK Parliament.

Breach of UKSC’s duties under EU law

One of the difficult legal issues on which the Brexit litigation hinged concerned the interpretation of Art 50 TEU and, in particular, the revocability of a notice given under Art 50(2) TEU. The interpretation of this point of law falls within the exclusive competence of the European Court of Justice (ECJ) under Art 263 TFEU. Interestingly, the UKSC stressed this monopoly of interpretation as a key element of EU law at para [64]. However, the UKSC has violated the ECJ’s monopoly of interpretation of the EU Treaties by accepting the parties’ commonly agreed position on the irrevocability of an Art 50(2) TEU notice at [26] of the Miller Judgment.

In doing so, the UKSC has infringed its obligation under Art 267(3) TFEU to engage in a preliminary reference to the ECJ concerning the interpretation of Art 50 TEU (for legal background see here and here). This cannot be saved by an argument that, under domestic procedural rules (or conventions), the UKSC had the possibility of taking this approach–and effectively dodging one of the most complex and unpredictable legal issues on which the litigation rested.

There are several reasons for this, but the primary one is that, as matter of EU law, a preliminary reference by the highest court of an EU Member State is unavoidable where the interpretation of EU law is necessary to enable it to give judgement–or, in other words, where the judgment relies on a given interpretation of EU law. In my view, it is beyond doubt that the UKSC Miller Judgment is based on the interpretation that an Art 50(2) TEU notice is irrevocable, and that this represents the legally binding view of the majority judgment, regardless of the attempt to save the UKSC’s view on this point in para [26] — or, in other words, it is not (logically, legally) true that the UKSC’s Miller Judgment operates ‘without expressing any view of our own on either point‘ (ie regarding the revocability or not of the Art 50(2) TEU notice). There are explicit indications of this interpretation in paras [59], [81] and [92] (see here for more detailed analysis of the latter).

In view of the relevance of the points of irrevocability of the Art 50(2) TEU notice, it is clear to me that the UKSC had an obligation to seek the interpretation of this provision by the ECJ and that, in not doing so, it has breached EU law. Moreover, beyond what some may consider a highly technical or academic point, by not seeking this clarification the UKSC has also done a disservice to the UK Parliament. Continue reading